United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE
matter before the Court is pursuant to the “Motion to
Dismiss for Lack of Subject Matter Jurisdiction and for
Failure to State a Claim, ” (ECF No. 11), filed on
January 8, 2018, by Defendants, Grace M. Bochenek, Susan
Malie, and Isabel Cotero. On November 7, 2017, District Court
Judge Irene M. Keeley entered an order, referring any motions
filed in this case to the undersigned for written orders or
report and recommendations. (ECF No. 5).
Dr. Ayyakkannu Manivannan, is a former employee of the United
States Department of Energy (DOE) at the National Energy
Technology Laboratory (NETL) in Morgantown, West Virginia.
Defendant, Grace M. Bochenek, Ph.D., is the Director of NETL;
Susan Malie is an Attorney-Advisor at NETL; and Defendant
Isabel Cotero, is a federal contractor that was working at
NETL at the time of the alleged acts addressed in
was placed on administrative leave on August 12, 2015, during
an internal investigation into allegations against him and
was forbidden from accessing NETL property or spaces. (ECF
No. 12 at 4). Upon the onset of administrative leave,
Plaintiff's office was secured under lock and key, and
controlled by the NETL security personnel. (ECF No. 12 at 4).
No one was permitted access to the area without consultation
with the NETL Office of Chief Counsel. Id. Plaintiff
tendered his resignation on June 16, 2016, which became
effective on June 17, 2016. Id. at 3.
September 1, 2016, Plaintiffs former office was assessed by
his previous Supervisor, Dr. David Alman, who was accompanied
by Mr. Mark Hunzeker, Attorney-Advisor in the Office of
General Counsel, Mr. John Moore, a representative of the NETL
security office, and Mr. Daniel Doyle, President of the
American Federation of Government Employees. (Id. at
4). Prior to moving any items in the office, the security
officer took photographs of the office, its condition, and
its contents. Id. Dr. Alman then proceeded to
identify and separate government property from Plaintiffs
property. Id. Items identified as government
property were returned to the NETL supply system management,
and items identified as belonging to the Plaintiff remained
secure in the office with access controlled by NETL security
and the NETL Morgantown site manager. Id.
September 2, 2016, Mr. Hunzeker contacted Plaintiffs attorney
to arrange the return of his personal property outside the
sliding gate at the NETL property site. Id. at 5. On
September 14, 2016, Plaintiffs attorney responded to Mr.
Hunzeker with a request via electronic mail to allow
Plaintiff, under security escort, to access the office in
order to personally identify which items belonged to him and
which items belonged to West Virginia University or NETL,
citing that Plaintiff is the only individual with such
detailed knowledge of his items. (ECF No. 17-3). Defendant
claims that Mr. Hunzeker never received any responsive
communications from Plaintiff or his attorney for
arrangements. (ECF No. 12 at 5). Plaintiff claims that Mr.
Hunzeker never responded to his attorney's September 14,
2016, request or made any other effort to communicate with
Plaintiff or coordinate arrangements. (ECF No. 17 at 8).
to Mr. Hunzeker's Declaration, sometime in January 2017,
two of Plaintiff's former colleagues, Dr. Richard L.
Pineault and Mr. Daniel J. Haynes, requested permission to
access Plaintiff's former office in order to search for
government property. (ECF No. 12 at 5). While searching for
government property they identified and separated property
which they knew belonged to the Plaintiff and Dr. Pinault
returned those items to the Plaintiff at the Plaintiff's
residence later that day. (ECF No. 13-6 at 3). There was no
production of a written inventory or requirement for
Plaintiff's signature to sign for receipt upon this
personal delivery. Id.
to the same Declaration by Mr. Hunzeker, by returning the
property to the Plaintiff, Dr. Pinault and Mr. Haynes acted
on their own initiative, without any notice to, or direction
from, anyone in authority at NETL. Id. However, it
is unclear whether or not Dr. Pinault and Mr. Haynes were
alone when they conducted this search. Mr. Hunzeker's
Declaration states that they were given a key by NETL
security, indicating that the ensuing events were conducted
without any security personnel present to witness the removal
of any items or supervise the search. Id. On the
other hand, the Defendant's Memorandum indicates that Dr.
Pinault and Mr. Haynes were, “escorted by NETL
security… [when they] … entered the office,
” which leads the court to presume that there was
security personnel present during the search, who would have
witnessed and supervised any removal of Plaintiff's
personal items. (ECF No. 12 at 5).
February 3, 2017, Morgantown Police Officer Matt Beavers was
dispatched to a “Talk With Officer” by public
service at the Department of Energy. (ECF No. 17-4). Officer
Beavers contacted both Plaintiff and Mr. Hunzeker and was
told by Mr. Hunzeker that he would contact the supervisor at
the Department of Energy and have them set up a time for
Plaintiff to retrieve his personal items. (ECF No. 17-4). A
week later, Officer Beaver was contacted by Plaintiff, who
stated he had not heard from the Department of Energy. (ECF
No. 17-4). Officer Beaver again contacted Mr. Hunzeker, who
stated that he had contacted the Department of Energy and
they had advised him that Plaintiff's property had
already been returned. (ECF No. 17-4). Mr. Hunzeker did not
inform Plaintiff or Plaintiff's attorney of the DOE's
advisement regarding the return of the items between these
two contacts with Officer Beaver, but advised Officer Beaver
to advise Plaintiff to contact him about the items. (ECF No.
March 2, 2017, Plaintiff's attorney was contacted by Mr.
Hunzeker by electronic mail inquiring as to whether he was
still Plaintiff's attorney and mentioned in that email
that some items had been delivered to Plaintiff's
residence on January 11, 2017, by an employee of the agency.
(ECF No. 17-5). Plaintiff's attorney says that this was
the first time he was made aware of any delivery that
occurred. (ECF No. 17-5). Plaintiff had indicated to his
attorney that due to the extensive delays on the part of NETL
in responding, Plaintiff no longer intended to use his
attorney's services on this issue. (ECF No. 17-5). Mr.
Hunzeker was informed of this by the Plaintiff's
attorney, via electronic mail on March 23, 2017. (ECF No.
17-5). There is no indication that Mr. Hunzeker reached out
to Plaintiff after receiving knowledge of this information.
Plaintiff proceeding pro se filed a civil action in
the Magistrate Court of Monongalia County, West Virginia, on
April 5, 2017, against Dr. Grace Bochenek as Director of
NETL. (ECF No. 23 at 2). Plaintiff solely requested relief
from the court to retrieve his personal belongings in his
former office at the NETL Morgantown site. Id. The
case was removed to this Court on December 14, 2017, and
assigned Civil Action No. 1:17cv216. However, prior to
removal, the civil summons for that case arrived at NETL on
or about May 3, 2017, by certified mail. (ECF No. 12 at 6).
The summons was signed for by Defendant Isabel Cortero at the
NETL mailroom. Id. Defendant Cortero's
responsibilities included receipt and distribution of
official mail. Id. Mailroom personnel then delivered
the summons to the NETL Executive Suite where Susan Malie,
Acting Chief Counsel at NETL, signed an internal
correspondence accountability log. Id. Defendant
Grace Bochenek stated that she was never personally served
with a summons in this case and did not sign for one by
certified mail. (ECF No. 1-5).
submitted a Freedom of Information Act (FOIA) request in May
2017, requesting “records showing Mark Hunzeker
arranging a visit for Dr. Manivannan with his supervisor to
have him come to NETL to collect his personal belongings from
his office, as well as other documents.” (ECF No. 17-9
at.4). On May 5, 2017, Plaintiff received a response that
stated NETL conducted a search for responsive records, and no
responsive records were found. (ECF 17-9 at 4). Plaintiff
appealed this determination, challenging the adequacy of the
search conducted under the FOIA. (ECF 17-9 at 6). On May 23,
2017, the Office of Hearings and Appeals (OHA) responded,
saying that DOE/NETL is withdrawing its May 5, 2017,
determination, which formed the basis for this appeal and
that NETL indicated it will issue a new response letter after
it conducts an additional search. (ECF No. 17-9 at 4). OHA
thereby dismissed Plaintiff's FOIA Appeal as moot (OHA
Case No. FIA -17-0012.) Id.
8, 2017, the Magistrate Court of Monongalia County ordered a
Default Judgement in favor of Plaintiff. Following the
judgment, Defendant Grace Bochenek appeared specially before
the court by Helen Altmeyer on June 21, 2017, and moved to
set aside the Default Judgment entered against her pursuant
to Rule 10(e) and Rule 17 of the West Virginia Rules of Civil
Procedure for Magistrate Courts on the basis that Defendant
Bochenek was not properly served under West Virginia Rule 4
of the Rules of Civil Procedure for Trial Courts of Record.
Defendant Bochenek also moved for dismissal on the grounds
that Plaintiff failed to state a clear claim, requested
relief in an amount outside the parameters for jurisdiction
and authority for West Virginia Magistrate courts, and on the
ground that Dr. Bochenek is not a proper Defendant in this
August 18, 2017, a hearing was held before Magistrate Hershel
R. Mullins at the Monongalia County Magistrate Court, where
Judge Mullins granted Defendant's motion to set aside the
Default Judgment until the Plaintiff properly served the
Defendant. The Magistrate Judge instructed the Plaintiff that
he needed to produce an itemized monetary value on his
belongings in question. (ECF No. 17 at 10).
is no indication that DOE/NETL followed up with an additional
search or determination. Plaintiff made another FOIA Appeal
on September 15, 2017, stating that NETL has still not issued
determination letters with regards to the FOIA requests. (ECF
No. 17-10). In response to this appeal on September 22, 2017,
OHA informed Plaintiff that he has already appealed the May
5, 2017, determination and that because NETL withdrew that
determination, stating its intention to issue a revised
determination after conducting further inquiry, OHA
accordingly dismissed Plaintiffs May 5, 2017, appeal. (ECF
No. 17-10 at 2). OHA expressed that they had spoken with
NETL, and that NETL has not issued a revised determination
letter for the request, and thus, it has not yet denied a
request for records in whole or in part, and the circumstance
for an administrative appeal do not yet exist. (ECF No. 17-10
at 2). Since the DOE had not issued a final determination for
these requests within the statutory time limit, OHA concluded
that Plaintiff may be deemed to have exhausted his
administrative remedies and may proceed with this matter in
federal district court. (ECF No. 17-10 at 2).
November 6, 2017, Plaintiff filed this civil action in this
Court against Defendants, Grace Bochenek, Susan Malie and
Isabel Cotero, citing 5 USC § 552(a)(6)(C)(i) and
alleging violations of 18 U.S.C. §§ 21, 1701 and
1702. (ECF No. 1). Defendants filed the pending “Motion
to Dismiss for Lack of Subject Matter Jurisdiction and for
Failure to State a Claim” on January 8, 2018. (ECF No.
11). Plaintiff filed a response in opposition to the motion
on January 22, 2018. (ECF No. 15). The undersigned held a
hearing on the pending motion on February 8, 2018. (ECF No.
Defendants' Motion to Dismiss
their motion to dismiss, Defendants moved that Plaintiffs
Complaint be dismissed arguing the Court lacks subject matter
jurisdiction and the Complaint failed to state a claim upon
which relief can be granted (ECF No. 11). Specifically,
Defendant argues that (1) Plaintiff failed to show that the
United States waived its sovereign immunity and thereby
consented to be sued; (2) Plaintiffs demand for judgment does
not reflect a request for documents pursuant to the Freedom
of Information Act (FOIA), 5 US.C. § 552(a); (3) civil
relief cannot be based upon the criminal statutes that
Plaintiff cited in the Complaint; and (4) the Complaint does
not request the provision of documents pursuant to the FOIA,
5 U.S.C. § 552(a). (ECF No. 12).
response, Plaintiff largely provided a rendition of the facts
of the case, highlighting contradictory statements made by
NETL, and alleging Defendants have used various tactics to
delay the progression of this case. Specifically, in response
to Defendants' jurisdictional argument, Plaintiff
asserted he has exhausted his administrative remedies
concerning his FOIA request, as the OHA office informed him
that because the DOE did not issue a final determination
regarding his requests, within the statutory time ...